Our Supermajoritarian Constitution
Michael B. Rappaport
University of San Diego School of Law
John O. McGinnis
Northwestern University - Pritzker School of Law
Texas Law Review, Forthcoming
This Article proposes a new theory of the Constitution that argues that the central principle underlying the Constitution is governance through supermajority rules. More specifically, the Constitution embraces supermajority rules as a means of improving legislative decisionmaking in various circumstances where majority rule would operate poorly. We argue that supermajoritarianism inheres in the Constitution in at least three ways. First, the text, structure, purpose, and history of the Constitution all reveal its supermajoritarian orientation. In particular, we maintain that the three basic decisionmaking rules in the Constitution - express supermajority rules, passage of ordinary legislation by two houses and presentment to the President, and absolute constitutional limitations such as the First Amendment - despite their surface dissimilarities, are all essentially supermajoritarian. We also show that supermajority rules were a central part of the legal regimes that preceded the Constitution and were an important part of Madison's vision of a charter that would restrain majority factions while preserving representative government.
Second, we examine the different supermajority rules in the Constitution and show that they largely conform to a persuasive model of when supermajority rules can improve government decisionmaking. We argue that supermajority rules can improve quality of legislation by filtering out undesirable legislation produced in circumstances when majority rule functions poorly. We then show that the different supermajority rules in the Constitution - including those governing impeachments, treaties, enactment and amendment of the Constitution, and passage of ordinary legislation - largely conform to this theory, which suggests that the Framers were implicitly following something like the theory.
Finally, we explore the normative theory underlying the Constitution and argue that what makes the Constitution attractive as higher law is that it could only be enacted if it secured the support of a large supermajority. The strict supermajoritarian filter through which the Constitution and amendments had to pass produces higher quality provisions than if they had merely been enacted under majority rule and, therefore, justifies using constitutional provisions to strike down ordinary legislation. A recognition of the supermajoritarian origins of the Constitution also helps to respond to complaints about the dead hand of the Constitution, because it shows that the Framers' generation had to satisfy as strict a supermajority requirement to enact constitutional provision as does the present generation. Finally, the supermajoritarian requirement for constitutional provisions supports an originalist methodology for interpreting the Constitution, because it is the original understanding of constitutional provisions that passes through the strict supermajority process for enactment or amendment.
Number of Pages in PDF File: 99
JEL Classification: K10
Date posted: October 31, 2001